Tuesday, December 21, 2010

Reason For The Poor Asian Response To International Criminal Court

Classical international law is the system that protects the rights of sovereign states to be free from external aggression and sets out a framework by which the relationship between states may be regulated. The matters relating to the individuals were considered as the private affairs of each sovereign state having absolute control on its residents. The Hobbestian notion of unrestricted, uncontrolled, inalienable domestic sovereign rights of states encapsulated under treaty of Westphalia  continued with minimum changes up to the end of World War II, when after the huge destruction of innocent lives followed by holocaust of Jews made the world community to think that states could not always be relied upon to guarantee the most basic rights of their citizens[1] nor they could be relied upon to hold the individuals accountable for committing core crimes of humanity , and thus an attempt was made to limit the absolute powers of sovereign states in treating their citizens and a new autonomous branch of law came into existence namely International criminal law, which is the combination of that body of laws, norms, and rules which governs the international crimes and their repression, as well as addressing conflict and cooperation between national criminal-law systems.

Development of international criminal law is seen as a significant departure from 'classical' international law which was mainly considered as law created by states for the benefit of states, but tended to ignore the individual as a subject of the law. Thus whereas International law typically imposes responsibilities of States for their benefits , international criminal law imposes responsibilities directly on individuals[2] and punishes violations through international mechanisms. Over a period of time certain crimes were recognized as Jus Cogen crimes imposing Erga Omnis obligation on each state to prevent them and punish the offenders irrespective of their official position. The Judgment of Nuremberg and Tokyo trial laid the foundation of transitional justice whose principles were later on recognized and incorporated under several conventions, treaties and statutes, the key   instruments among these are Anti Genocide Convention of 1948, Hague and Geneva conventions on war and warfare 1949 with its two protocols of 1977, Anti Torture convention 1975, Rome statute of International Criminal Court 1998 etc. In true spirit International Criminal Law got momentum only after the judgment of Nuremberg and Tokyo trial wherein it was observed that no body , no state, no head of state, no soldier acting under apparently legal orders has right to violate the most fundamental rights of humanity.[3] Thus international criminal law laid to the "subjection of the totality of international relations to the rule of law"[4]

Sunday, December 19, 2010

DEVELOPMENT INDUCED DISPLACEMENT OF TRIBALS : An Analysis From Human Rights and Environmental Perspectives

Development refers to economic, social, political and cultural processes of change in human societies which seeks to satisfy the spiritual and material needs of man. Displacement is an inherent[1] phenomenon of such development. Normally developmental projects are aimed at fighting poverty and their outcome is beneficial; however during last three decades development induced displacement has become an explosive issue worldwide because the improved scientific and technological knowledge has enabled the modern states in concentrating on mega development projects which directly led to the large number of displacement generally of poor and marginalized section of society like tribals, indigenous people, living in forests or rural areas. This issue is of more concern in developing countries like India where due to the lack of proper rehabilitation and resettlement measures as well as restoration of environmental degradation, developmental projects has become a government run instrument of ethnocide.
The present development model is under severe criticism from human rights activists  ;They  argue that tribals resources are being used as means for feeding the greed of few elites who have hijacked the welfare policy making power of state on a socialist pattern; as a result  tribals have become the object of development[2] and the little they have are continuously being exploited by exclusionary policy of government which is now accelerating the gap between those who do not have enough and those who have more than enough; the have-not are miserable and the elite anxious to get more.
Displacement of people generally give rise to severe economic, social and environmental problems; productions are lost; people are relocated to environments where their productive skills are less applicable, greater kinship groups are dispersed; and cultural identity, traditional authority and the potential for mutual help are diminished[3]. The forced displacement is now generating the capital and human resource to the present tribal led Naxal movement which has captured more than 220 districts of country, and ensured a parallel government therein. Despite of several constitutional ,and domestic legal protections, hardly there benefit reaches to such marginalized people .The progress of government on environmental front is also being severely criticized by the environmentalist for giving green signal to several projects without proper environment impact assessment and dilution of several environmental laws to accelerate the industrialization.The scope of this paper is to do an analysis of the present development and resettlement policy of India with primary focus on tribals and environmental issues.

Constitutionality of taxing services provided and received outside India

What is Section 66A?
The Finance Act, 1994 was amended by the Finance Act, 2006 with a view to replace the Explanation under Section 65(105) with the new Section 66A, which came into force on 18.4.2006. The Central Government also introduced the Taxation of Services (Provided from outside and Received in India) Rules, 2006[1] under Section 66A. This new section, along with the rules, shows the intention of the Central Government to tax services rendered by non-resident persons from outside India (i.e. outside the territorial limits of India) to a person in India.

As per these new provisions, if a taxable service is rendered by a person outside India and if the said service is received by a person in India or by a person located in India, the person in India shall be deemed to be the provider of such service, for the purposes of payment of service tax.Section 66A is based on the reverse charge method, where a legal fiction is created by which the recipient of service is made liable to pay the tax as if he alone had provided the services domestically. In such a case, the recipient of service is treated as ‘deemed service provider’.

Religious Endowments in Hindu Law

From the earliest times Hindus have been dedicating property for religious and charitable purposes. This has been mainly under two heads: Ishta and Pushta. The former indicates the Vedic sacrifices and rites and gifts associated with such sacrifices. The latter stands for all other religious and charitable acts and purposes unconnected with the vedic sacrifices. The Ishta –Pushta have been considered as means for going to heaven. Various types of gifts were emphasised , but merely by making gifts or performing sacrifices, a charitable or religious endowment doesn’t come into existence. It will come into existence only when some property or fund is dedicated for a religious or charitable purpose or object.
It is to be noted that definition of the phrase "charitable purpose" is inclusive and it covers a wider field than the field covered by the words "religious purpose". Further, in some cases, even a religious activity by a particular sect would be a charitable activity; for some, supply of fodder to animals and cattle is a religious object, while to others it may be a charitable purpose, according to Hindu religious activity. Similarly, Khairat under the Mohamedan law would be considered to be a religious activity. The said activities may be for a charitable purpose to some. Hence, in many cases, both the purposes may be overlapping. The purposes may have both the elements, charity as well as religious.
While dealing with what is "religious" or "charitable purpose" it is observed by the Supreme Court in the case of Ramchandra Shukla v. Shree Mahadeoji[1], that there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion. While discussing this aspect, the Supreme Court has further observed as under (at page 464):
"Hindu piety found expression in gifts to idols to religious institutions and for all purposes considered meritorious in the Hindu social and religious system. Therefore, although courts in India have for a long time adopted the technical meaning of charitable trusts and charitable purposes which the courts in England have placed upon the term 'charity' in the Statute of Elizabeth, and, therefore, all purposes which according to English law are charitable will be charitable under Hindu law, the Hindu concept of charity is so comprehensive that there are other purposes in addition which are recognised as charitable purposes. Hence, what are purely religious purposes and what religious purposes will be charitable purposes must be decided according to Hindu notions and Hindu law.
As observed by Mukherjea in Hindu Law and Religious and Charitable Trusts, Second edn., page 11, there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion, for, gifts both for religious and charitable purposes are impelled by the desire to acquire religious merit. According to Pandit Prannath Saraswati, these fell under two heads, Istha and Purta. The former meant sacrifices, and sacrificial gifts and the latter meant charities. Among the Istha acts are Vedic sacrifices, gifts to the priests at the time of such sacrifices, preservations of vedas, religious austerity, rectitude, vaisvadev sacrifices and hospitality. Among the Purta acts are construction and maintenance of temples, tanks, wells, planting of groves, gifts of food, dharamshalas, places for drinking water, relief of the sick, and promotion of education and learning. (of. Pandit Prannath Saraswati's Hindu Law of Endowments, 1897, pages 26-27). Istha and Purta are in fact regarded as the common duties of the twice born class (cf. Pandit Saraswati, page 27).''

Essentials of A Valid Endowment
Essencial of a valid edowments are 
  1. The dedication must be complete,
  2. The subject matter must be specific,
  3. The object must be definite,
  4. The settler must have the capacity to make the endowment.

The Victim

Women in our country, even after six decades of India’s independence, continue to be helpless victims in every walk of their life. They are being tortured and beleaguered physically as well as mentally everywhere and every time. In our society, either in domestic sphere or in outer world women from all walks of life has been criminally exploited. Women who constitute one-half of the society and without whose presence the survival of the world would have been impossible, have ironically been made a subject of sexual harassment and are going through hell in this male dominated world. Almost every day a case of sexual assault is being reported in the daily newspaper. As per the national commission for women, every twenty – six minutes a woman is molested, every thirty-four minutes a rape takes place and every forty- two minutes an incident of sexual harassment takes place.

      Crimes against women are as old as the civilization and equally ancient are the efforts to combat and arrest them. Women in India through the ages have been victimized, humiliated, tortured and exploited. Throughout the world, millions of women live in conditions of abject deprivation of and attacks against their fundamental human rights for no reason other than that they are women. Being a member of the human family, she has the right to be treated as human from womb to tomb.

        Violence against women, more particularly within the domestic environment has become a serious social issue and of our concern. Domestic Violence occurs in all geographical areas of India and in all socio-economic and cultural groups. Millions of women in India suffer beatings and verbal abuse at home. It directly affects the victims, their children, their families and has repercussions on the quality of their life. Domestic Violence means that any act of violence that result in or is likely to result in physical, sexual, or psychological harm or suffering to women, perpetrated by their male partners whether they are married or not and whether they live together or not. In fact, violence against women is a discrimination against the women community which is largely related to cultural stereotypes. It is one of the strongest expressions of gender stereotypes.

Employer's Liability under Contract Labour (Regulation and Abolition) Act, 1970

The system of employing contract labour there in most industries in different occupations including skilled and semi skilled jobs. Even it may be in the agriculture and allied services. .A workman is deemed to be employed as Contract Labour when he is hired in connection with the work of an establishment by or through a contractor as per section 2(b) of the Contract Labour (Regulation and Abolition). One more thing is stipulated by the section that, that worker is hired with or without the knowledge of the employer, is immaterial.Contract workmen are indirect employees; they are persons, hired, supervised and remunerated by a contractor who, they are compensated by the establishment. Contract labourers may be employed for a specific work, which is for specific duration. But there are so many problems under the system of contract labour as like inferior labour status in comparison to the other regular workers, casual nature of employment, lack of security in work, and poor economic conditions. One perspective that is economic factors as like cost effectiveness may justify contract labour, but the extent of it must be determined another perspective, that is social justice.  
The Supreme Court of India in the case of Standard Vacuum Refinery Company Vs. their workmen[1] observed that-  If the work is of  perennial nature which must be done day by day, then the employer can easily hire the regular workers for it. Further the court went on to say that the situation would be different when the work is of intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for this purpose.

US economic slow down - which way to go?

Discussion forum


The Trademarks Law: Google Inc. v. Consim Industries Pvt. Ltd.

The internet offers tremendous opportunities to creative businesses to expand their traditional views of marketing. However, due to essential nature of the internet system, which works both on a software system where both temporary copying and storing is a common place, and a domain name based system that is overcrowded, companies must tread carefully when developing marketing strategies for the internet. The issues illustrated in this essay demonstrate that trademark law concerning the internet is unsettled, and will remain the same for sometime, leading to a number of lawsuits. It behoves anyone jumping into e-commerce only after the registration of any or all of the domain names that can cause confusions to its trade mark There is no room for errors in cyber space because any slight delay in registration could be fatal for the company. The essay explores such other aspects in relation to consim controversy.


The Law of Cyberspace: Legal Paradigms of CyberLaw

As new technologies are created, terrorist groups are developing new methods of attack by using the internet as their battlefield. Since the internet holds no territorial boundaries, nation-states have become increasingly vulnerable to cyber threats and terrorist attacks. With almost no leads on the terrorist group at fault it has become increasingly difficult for law enforcement and military officials to identity and defectively respond to attack through cyberspace. This paper answers: 1) Who should respond?, 2) How to respond? 3) How to build transnational legislations for combating the menace?


Tuesday, September 28, 2010

The Software Patents Debate: US v. EU

Voracious Vehemence for IP Rights: Current Scenario and the Need For
Harmonisation of Laws Regulating Patentability of Software Patents

I.] The Patent Debate- Growing Diverse Visions
II.] The Voracious Vehemence for the IP rights
III.] Experiences of the various states
IV.] Overlapping of software patents- Reasonable Reasons for disclosing the software thickets
I.] Trends in the legislations- A Comparative Analysis
II.] The duality in protection of the computer softwares
III.] The legal and scientific views of patentability
IV.] The need of harmonization: Answering the quest for absolute justice
     A.] The key principle for harmonization of the patentability of computer- Implemented  
     B.] The possible claims- preserving what is at stake.
            1)  The perplexed analysis of patentability
            2) The pros and cons of software patents.
            3) Analysis of the alternative copyright.
            4) Policy recommendations and future research – Outlook and suggestions.
   C.] Proposed reforms to the various country reports
          1) Shortcoming in the legal systems
          2) Upholding the moral rights of the software developers
          3) Analysis the constitutionality of the patents
          4) Future references.


Thursday, September 16, 2010


Concept of “Residence” under Income Tax Act
By Sabaha Khan
LLm (Business Laws)
National law school of India university, Bangalore
 Tax incidence on an assessed depends on his residential status. For instance, whether an income, accrued to an individual outside India, is taxable in India depends upon the residential status of an individual in India. Similarly, whether an income earned by a foreign national in India (or outside India) is taxable in India depends on the residential status of an individual, rather than his citizenship. Therefore, the determination of the residential status of the person is very significant in order to find out his tax liability[1]. One can say that taxation of the assessee depends on his residence. Therefore, the first inquiry is always towards proper ascertainment of the residential status of an assessee. In a decision of the Calcutta High Court[2] the learned judge observed,
“in my opinion, the word residence in its simple and ordinarily meaning signifies the place where the human eats, drinks or sleeps, or where his family and servants eats, drink and sleep and where there is some permanence and continuance of such eating. Drinking and sleeping and the statement of Bayley Justice in the case of King v. Inhabitants of North curry, is in m opinion, an authority on that proposition.”

Saturday, September 11, 2010

Claims tribunal; constitution, function & claims procedure

2.Constitution of the claims tribunal
3.Function of the tribunal

4.Application for compensation
5.Fraudulent claims
6.Settlement of claims


Registration of Unconventional Trademarks in India

A trade mark may be a word signature, name, device, label, numerals or combination of colours used by an undertaking, on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. Under the Trade Marks Act, 1999, goods and services are classified according to the International Classification of goods and services. Schedule IV of the Act provides a summary list of such goods and services falling in different classes: but this is merely indicative. The Registrar is the final authority in the determination of the class in which particular goods or services fall.   
The different types of trademarks available for adoption are:
  • Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
  • An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
  • Letters or numerals or any combination thereof.
  • The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
  • Devices, including fancy devices or symbols
  • Monograms.
  • Combination of colours or even a single colour in combination with a word or device.
  • Shape of goods or their packaging.
  • Marks constituting a 3- dimensional sign.
  • Sound marks when represented in conventional notation or described in words by being graphically represented.

Friday, September 10, 2010

Trade Mark Law in India & Its Violation ? An Analytical Study

A trademark or trade mark is one of the elements of Intellectual Property Right  and is represented by the symbol TM or ® or mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories.
The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.

Rights & Remedies of a Trade Mark Owner-
The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.


Wednesday, September 8, 2010

Case Study: Merger of ICICI Limited with ICICI Bank

Case Study: Merger of ICICI Limited with ICICI Bank

Brownfield expansion has become one of the popular strategies being pursued by companies from all over the world. Indian companies are no exception to this trend. The wave of merger and acquisitions have been knocking at the door of Indian Financial system. But this trend is not exactly new. There have been 36 mergers in the Indian banking Industry since 1969- the year in which the banking sector was nationalised by the government. The merger of ICICI Ltd with ICICI Bank is an example of reverse merger led to the creation of India’s first Universal Bank.
ICICI Ltd merged with ICICI Bank on 30th March 2002, with the swap ratio of 2 ICICI shares for 1 share of ICICI Bank limited. With this merger, second largest bank in India was born. RBI had given approval for reverse merger of ICICI Ltd with its banking arm ICICI bank. ICICI bank with its 1 lakh crore rupees asset base bank is second only to State Bank of India, which is well over Rs. 3 lakh crore in size. RBI also cleared the merger of two ICICI subsidiaries ICICI Personal Financial Services and ICICI Capital Services with ICICI Bank. The merged entity will have a capital base of Rs 95 billion, 8,300 employees and a huge nationwide branch network..... by Sabaha Khan

Expanding scope of Marks Capable of Registration under Trade Mark Laws


"There is nothing in the intellect that was not first in the senses."
                                                                                                     Aristotle, On the Soul
What immediately comes to your mind when you hear the sound of chimes, a child’s giggle or a lion roar? Smell fresh cut grass or plumeria blossoms? Or see the colour pink? A non-traditional trademark is relatively new under the IP law and therefore does not come under the pre existing conventional categories of marks like letters, numerals, words, logos, pictures etc. The term therefore consist of marks such as colour, sound, smell, shape, moving image, hologram, tactile, taste, and celebrity mark. The concept of non traditional mark is an innovative concept as it produces entirely new family of marks discrete and distinct from the traditional trademarks. Non-traditional trademark can either be visible signs such as colours, shapes, moving images or holograms or non visible such as sound, scents or taste etc.
Therefore, the scope and function of modern trademark have considerably expanded, as civilisation continues to evolve into a modern technological era.Trademark has to include an indication of origin and a quality guarantee and have to function as a marketing and advertising device alsoConsumers readily recognize traditional trademarks such as brand names and logos as identifying the source and quality of goods and services. However, consumers may not readily acknowledge that a colour, sound, or scent functions as a trademark. Further, even where consumer recognition is not an issue, consumers rarely have the opportunity to make a direct comparison between similar non-traditional marks and, as a result, face increased difficulty identifying and distinguishing their desired product or service. As such, granting trademark protection in non-traditional marks may incite rather than mitigate consumer confusion. There are fundamentally three tests, which every mark has to qualify in order to be registered as trademark. The tests of functionality, graphical representability and distinctiveness. According to section 2(1)(zb) of Indian Trademark Act 1999, any mark which is capable of distinguishing goods and services of one undertaking from another, and capable of represented graphically is capable of registration. Thus, the trademark definition is inclusive one and non-traditional trademark can very well come under it if they fulfil the criteria given. However, there are also several problems with the registration of non-traditional mark like the problem of distinctiveness itself. Though, certain non traditional trademarks like colour and shape can be identified by consumers easily, for others like smell and taste marks, perception may vary which may create confusion in the minds of consumers. The second problem is graphical representability of the mark to be registered especially in case of smell and sound mark. This paper concentrates on these aspects in the light of legal requirements in various jurisdictions and with the help of decided cases...... by Sabaha Khan

Monday, September 6, 2010

All India Bar Examination in order to practice law in India...

The All India Bar Examination intended to test an advocate’s ability to practice the profession of law in India. As on December 5, 2010 first time that this examination will be conducted, it will assess capabilities at a basic level, and is intended to set a minimum standard for admission to the practice of law; it addresses a candidate’s analytical abilities and basic knowledge of law.

The first All India Bar Examination shall be mandatory for all law students graduating from the academic year 2009-2010 onwards. Candidates may apply to appear for the All India Bar Examination only after enrolling as an advocate under Section 24 of the Advocates Act, 1961 and will have to submit suitable proof of such enrolment along with the application form for the All India Bar Examination.... 

Thursday, August 19, 2010

CONCEPT OF EQUITY: WITH EMPHASIS ON ITS ORIGIN - http://www.goforthelaw.com/forum/viewtopic.php?f=2&t=4

Equity … in its technical sense, may be defined as a portion of natural justice, which , though of such a nature as properly to admit of being judicially enforced, was, from circumstances hereafter to be noticed, omitted to be enforced by common law Courts – an omission which was supplied by the Court of Chancery. 
- Snell

In ancient Rome, the term jus civile (civil law) was used to distinguish the proper or ancient law of the city or state of Rome from the jus gentium, or the law thought to be common to all the people. 
In the Holy Roman Empire of German nations the reception was facilitated because its emperors cherished the idea of being the direct successors of the Roman Caesars. The Roman law, collected in the “Corpus Juris civilis” by the emperor Justinian I between 527 and 565, could be regarded as still being in effect simply because it was the imperial law.

The word epieikeia has both a philosophical and practical moral significance in ancient Greek. The former is captured by Aristotle in the Nicomachean Ethics while the latter is represented in several New Testament passages. 
Aristotle , Law is always a general statement, yet there are cases which it is not possible to cover in a general statement. In matters therefore where, while it is necessary to speak in general terms, it is not possible to do so correctly, the law takes into consideration the majority of cases, although it is not unaware of the error this involves. And this does not make it a wrong law; for the error is not in the law nor the lawgiver, but in the nature of the case: the material of conduct is essentially irregular. When such a situation arises, the lawgiver may “rectify” the problem.
On the one hand, according to the rectification theory, a judge will see himself trying to “correct” or “rectify” the inadequacy and error of the law by doing the “right thing” and making his decision. On the other hand is the interpretation theory, more popular in the late 19th-20th centuries, which argues that what the judge is really doing is applying the spirit of the law to the factual scenario that wasn't imagined by the law’s framers. 

Originally the King's Council carried out the three functions of state, namely legislative, executive and judicial.
Curia Regis gave way to Royal Courts
King's Council (Curia Regis) started of sending judges around the country to hold assizes (or sittings) to hear cases locally. Justices of the Peace (or magistrates) originated from a Royal Proclamation of 1195 creating 'Knights of the Peace' to assist the Sheriff in enforcing the law. They were later given judicial functions and dealt with minor crimes.

Writ system 
The judges developed the writ system. The rule was 'no writ, no remedy'. Writs were issued by the clerks in the Chancellor's Office and they began to issue new writs to overcome these difficulties, in effect creating new legal rights.
In 1285 the Statute of Westminster II authorised the clerks to issue new writs but only if claims were in 'like cases' to those before 1258. The Chancellor supervised the Chancery where clerks (who originally worked behind a wooden screen - cancelleria - hence Chancery) issued writs, commissions and other legal documents.
The Chancellor dealt with these petitions on the basis of what was morally right. The Chancellor would give or withhold relief, not according to any precedent, but according to the effect produced upon his own individual sense of right and wrong by the merits of the particular case before him. 

Independent authority of Lord Chancellor
In 1474 the Chancellor issued the first decree in his own name, which began the independence of the Court of Chancery from the King's Council....

Sunday, August 15, 2010

Maneka gandhi case _ Art 19(1)and (g), art 19(6)

Maneka gandhi case reported in AIR 1978 SC 597,arising under the passport act, is considered as one of the land mark judgement to constitutional courts' armoury tools for the judicial review of administrative and legislative action in india under the indian constitution for preservation of rule of law and protection of fundamental rights of citizens and other persons.

The following paras of the judgment from opinion of justice bhagwati speaking for the majority opinion is but one aspect of the several statements of law and its application to facts of the case:

"It is clear therefore that when section 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental rights granted by the Constitution of India." It would thus be clear that though the impugned Order may be within the terms of section 10(3) (c), ...


Wednesday, August 11, 2010

E-Legal Awareness and Education: Application of Principle of Separation of Powers i...

E-Legal Awareness and Education: Application of Principle of Separation of Powers i...: "Introduction I have tried to study the rise and fall of empires, nations as political entities through the study of rise and fall of public ..."

E-Legal Awareness and Education: Non sovereign UN to sovereign UN: A silent cry - S...

E-Legal Awareness and Education: Non sovereign UN to sovereign UN: A silent cry - S...: "Trade-politics- law in historyPolitics, economics and law are historically so integrally connected that they all go together. Every human be..."

Application of Principle of Separation of Powers in all walks of Public Life


I have tried to study the rise and fall of empires, nations as political entities through the study of rise and fall of public powers of the individuals or body of individuals occupying the offices or centers of sovereign public powers and have broadly categorised the powers exercised by such sovereign public persons or body of persons into three broad classes i.e. legislative, executive and judicial capable of affecting the rights and liberties of private individuals who constituted the subjects of such sovereign public power and found that the rise and fall of the political entities of the subject nations and the strength and weakness of its subjects varied with different permutations and combinations of these different class of powers in the same or different persons. The once produced tyranny the other produced private enterprise or otherwise one helped great empires and greater political entities, the other hindered or helped to divide the political entities. It is like energy acquiring the character of force with a magnitude and direction in one case, capable of doing a work in the desired direction, the other, for the loss of direction and destruction of the work. I have tried to analyse the effects of combination of two or more powers of the above three broad classes of powers in the one or same persons in the hierarchy and its affect on the rights and liberties of the citizens as well as on the public interest by analysing the historical precedents. I have broadly analysed historical events from Greek history, Roman history, Indian history, Islamic and Christian movements, British Empire, American model of government and different combinations of the powers like political power with economic power, legislative power with executive power etc. or all the powers in one or more persons in hierarchy in the history.

I have first analysed the combinations of different governmental powers and the sources of abuse of power, then public power with private enterprise and lastly religious power with public power and their likely impact on the rights and liberties of individual persons and finally I have suggested that the personal separation of powers should be affected in all walks of public life possessing the public powers which includes the corporate power as a part of public power and the model for effecting the personal separation of power at all levels of public powers. The reader is given to critically view the correctness or otherwise of such an idea and its usefulness and practicability in the modern social public life.


Combination of Different Governmental Powers - Sources of Abuse of Power

            It is axiomatic that all men are by nature endowed with certain inalienable rights including “right to life, liberty, pursuit of happiness”. When the men live in society, it is a social compact by which the whole people coordinate with each person and each person with whole people that all shall be govern by certain laws and principles for the common good.   These ideas are the two reflections of historical processes formulated by the great political thinkers, among which include Plato, Aristotle, Locke, Rousseau and Hobbes.

            It is axiomatic that institutions of Government are devised as a means to end and not an end in itself i.e. the Government is created by contract or otherwise to serve the welfare of the people. It is stated in the Massachusetts document “the end of Government is to secure the existence of body politics, to protect it and to furnish the individuals who compose it with the power of enjoying in safety and tranquility, their natural rights and blessings of life”. A Government which fails to serve the ends for which it was set up has breached express or implied contract under which it was established forfeiting the loyalty of it’s people and it is the right of the people to alter or to abolish it and to institute new Government, laying its foundations on such principles and organizing it’s powers in such ways as to them shall seem most not likely to affect their safety and happiness which is found in history and experience. There is always conflict between private interest and public interest when any person is vested with public power to dispense with or dispose off life, liberty and property of others. There is a tendency of that person to maximize his own self-interest in the expense of the public if there are no restrictions and checks and balances in exercise of such public power by that person. If all the public powers are vested in the same person, then the rights of the public are at peril as the person symbolizes the tyranny with no predictable rights and remedies to the public at large. The public powers have been broadly classified into three categories i.e. legislative, executive and judicial. If all such three powers vested in the same person, it is nothing but tyranny. If more than two powers combine in one person, it is still possible for abusing the public power for personal ends at the expense of the public unless there exist the clear checks and balances in system. The combining of two powers may be of either legislative and executive or legislative and judicial or executive and legislative or executive judicial or judicial legislative or judicial executive. Any one or more combination in one person may be either less or more productive of public mischief.

            The first person who has critically analyzed the functioning of various governmental powers in actual working in various systems of Government and the conflicts/governmental powers with the private powers, rights and liberties of it’s people was a Montesque. He has declared the doctrine of separation of powers to minimize the  abuse of governmental powers by persons vested with public powers. He has studied various constitutions and systems of government and found that the personal separation of powers is the best guarantee against the arbitrary powers and control over the life and liberty of its subject and the said doctrine was further expounded and adopted by the framers of the American Constitution and incorporated the same in their Constitution.

            The doctrine of separation of powers implying personal separation of powers, was stated by the Montisquo in the following words.

            “ When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers…

            The same was understood and expounded by the Madison in the pederlist No.47 as “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”.

            I totally agree with the said observations and findings and anything less than that is productive of abuse of public power and public mischief.

            All powers can be divided into two categories i.e. public power and private power. It can further be stated that public power includes all powers that is not purely private power. The sovereign power exercise by the state bodies is a part of the public power. This can also be stated in its converse i.e. public interest and private interest. The inter-relationship between these two powers is a continuing one. It is not static. It always remains in a dynamic disequilibria.

            A study of this dynamic disequilibria of the relevant historical period consists in the analysis of the various branches of social life. Time becomes an important variable in the study of these relationships. The science and technologies, material progress and the institutional arrangements in the social life affects the power, structures and equations and which in turn also affects the science and technology, material progress and social institutions. It can be said that there will be a dialectical relationship between these institutional and the power structures and material progress.

            For instance, you take the economic laws, an individual if acting as an entrepreneur as a producer, will try to maximize his economic interest and profit by using all powers at his disposal and when the same person acts as a consumer, will try to maximize his utility given the budget constraint. It is in tune with law of nature. But if the same person is holding the public power at his command, the conflict of his public duty with the tendency of an individual as a human being to maximize his self-interest either in the form of maximizing his own profit or maximizing his own utility is writ at large. Various devices have been suggested and practiced by people to minimize this conflict of interest.

            In the case of sovereign state powers and the offices created to exercise such powers, the powers and the offices have been broadly classified into three categories i.e. legislative, executive and judicial. Each of these state powers have the capacity to affect the rights and liberties of the private persons and citizens rights, liberties and properties. Therefore, every person desires that the said powers should be so exercised as to not to affect their rights, liberties and properties and even if they take any decision, which affects their interest, there should be reasonable safeguards and on certain principles of predictability. They always entertain an apprehension that if more power is concentrated in such persons holding the public offices, their rights and liberties are at peril. In the history, it is true that the person holding the public power always mixed it with his private interest and the same will become a threat to the interest of the public. When dictatorial powers are conferred or usurped by certain individuals or bodies of individuals, they always tended in the end as capable of being exercised for their private ends. Therefore, the people demanded for establishment of institutions which divides these powers into separate persons as a checks and balances system for due exercise of the public powers. The British legal history is an illustration of this process where judicial powers have been separated from the King and so also the legislative powers while the King was exercising royal prerogative as the State head of executive. But the British form of Government later times combined the executive though separate, but yet forming part of legislature and responsible to the legislature did not totally separate these two wings. The relationship between the executive and legislatures in British form of Government has become an embodiment of same person capable of exercising both legislative and executive powers making the crown titular head. If the leader of the majority party in the Legislature is elected as the Prime Minister as the executive head of the State, he is representing in a way the head of the executive i.e. combining two powers in one person. In case of American form of Government, the powers are separated, the mode of electing the heads of these three wings are separated and fine tune of checks and balances system has been evolved to check the powers and also to meet the emergency situations. A study of Roman, Greek and experience also indicates the evolution of separation of powers theory. But separation of powers theory in practice and during the end of the period before institution of the concept of emperor, the executive became too powerful with all the military powers at his command with all political rivals removed and the other institutions of legislative and judicial wings too weak to resist the persons occupying the office with dictatorial ambitions of subverting all the powers and institutions to their private ends.

Non sovereign UN to sovereign UN: A silent cry - S Lakshma Reddy

Trade-politics- law in history
Politics, economics and law are historically so integrally connected that they all go together. Every human being as an economic productive unit enters into contractual exchange relationships with other human beings to produce any useful products or services to satisfy their mutual wants or desires and when these relationships encompasses higher social levels they require organizational forms into which individual fit as tissues in an organic whole with special or general purposes bodies. These organizations encompassing social groups as a whole in a defined territories acquire political character with a power structure that determine the rights duties liabilities of its members for smooth and orderly development of social group as a whole under a legal structure what we know as law and order, and law and justice. But these social groups with political character have not remained static or fixed in history and they kept on changing with their relationships with other competing political groups either on the basis of mutual competition, consensus or conquest of the other groups and transformed like in the case of modern acquisition and merger of companies, the several clan groups into tribal groups and tribal groups into political groups some times absorbed by dominant cultures some time assimilated, some times subdued and subordinated and became smaller but greater and broader political groups and greater relations of trade and mixture of people took place under greater political units. We have seen several permutation and combinations of monarchies, and other forms of governments some times extending to greater political empires and some times spitted into smaller territorial groups depending upon the power and tenacity of political leaders. The trade and exchange of goods and services flowed along with elasticity of political groupings in the ever changing territorial units. Though the jurisprudential ideas on the rights, duties liabilities of persons as members of social groups remained as clear but the remedies always underwent changes depending upon the power structure at the helm. If the political power is concentrated in military grouping either in the person of king or dictator or some aristocratic group or mob of middle class or mob of lower classes there was corresponding emphasis on certain rights whether it be social, economic, or political but the substratum of legal concepts always maintained because they are integrally connected with human beings as producers, traders and consumers owning certain basic rights as sine qua non, constituting the political economy for satisfying individual and social wants and desires.

We see this historical social civilization process in the history of Greeks, Romans, Persians, Africans, Asiatic, European, Indian societies, all over the world. The present is the continuation of the past.


Propositions derived from history

The greater the political unity, the greater is the freedom of movement of people and trade.
The greater the freedom of movement of people and trade the greater is the division of labor and specialization of trades.
The greater the freedoms of movement of people and trade, the greater are the abridgement of gaps of inequalities and equalizations of opportunities and profits of trade.
The greater the political unity the greater is the threat to individual rights and freedoms of people from the political or other organized public powers that be
The greater the political disunity the greater the threat from other rival political groups or states that threaten the safety and security of individuals and states inviting greater outlays on defense of realms.
The greater the outlays on defense of realms the lesser the outlay on other useful social good and services that enhances the happiness of people.

For secure future

Like that finally we can deduce that the greater political unity, let us say the global political unity, with adequate legal safeguards against the concentration of great political power that threaten the rights and liberties of individual citizens the people will have greater benefits contributing optimum utilization of natural and human resources to the maximum happiness of maximum number of people without infringing the others rights.

Cost  - benefit of political unity

The cost benefits of these political economies organized into greater political units like confederation of various Greek states with provinces spread over Europe, Africa, Asia during Alexander the great period, similar and more enduring empire under the roman period with vast network of legal infrastructure under one sovereign, Napoleonic empire the more recent British empire under the responsible king and limited confederations like US, UK, USSR, INDIA, GERMANY, CANADA, etc enabled the people to freely move and trade throughout the extended territories with certain legal rights recognized by such political bodies under their sovereign legislative, executive, judicial powers.  The political units built upon force, fraud and not on the basis of voluntary union naturally disintegrated and formed into smaller ones in history like collapse of Alexandrian, Roman, British empires and new political national bodies were born based on certain common characteristics like language, cultural, racial similarities in defined territories on globe. These smaller political units reduced the freedom of movement of trade and people into their own units and limited the international movement by several restrictions. With restrictions on movement followed the truncation of creation of global division of labor that is not consistent with technology and available natural and human resources on earth. These truncated smaller political units out of scarcity of natural or other adequate capital resources to feed its people have grown feelings of jealousy, rapaciousness, envy are practicing fraudulent misrepresentations, like any other individual human behavior fraught with Hobbes state of nature society. Aggressive behavior, domination for gain on one side and submission and surrender of rights for survival of one’s life on other side is to be found in the behavior of nation states in their mutual intercourse in international affairs some time spilling over as world wars. We are in such a state of affairs now        

Global political unity - Globalization

But things are not static. The economy moves with science and technology and it some demands human and political reorganization of social life asserting its own power with people. We have seen in all earlier history it was leader led political history that determined the extent of trade and movements. Now it is technology empowered people through instantaneous communication and transport demanding freedom to move, contract with any persons any where in the globe irrespective of the political units they reside and any restrictions on this freedom is decried as unreasonable and anachronism. This is a new freedom movement for global people from the clutches of outgrown anachronism political bodies  and entities and want new order of  political structures that facilitate the movement of people through out globe, enter into any valid contracts with binding enforceability, and  for prevention of crime on global scale, for maintaining law and order and law and justice on global level for the safety and security to their lives, liberties, properties, to determine their own lives subject only to one ultimate valid general global law with equally valid subordinate  local laws.

WTO- Free trade goals

WTO is set up with the sole objective of promoting global free trade. Free trade on global level implies dismantling old local political restrictive trade practices and creation of uniform global rules and regulations for free flow of capital and labor and WTO is now on that job with all its `sincerity` within its jurisdiction.

Diagnosis of the global political disease

WTO  has in fact diagnosed the disease that that local political restrictive trade practices like imposition of trade tariffs through customs duties, discriminatory taxation policies, discriminatory subsidies, prohibition of imports and exports in the name of local public interest in retaliation or as protective measures in its own interest in the face of international jungle law or rag are impeding the natural free trade objectives and now embarked on the mission of bringing orderly development through near impossible task of consensus from multilateral, regional and bilateral trade negotiations.


I as silent spectator feel crying to the august office of WTO to willingly open its eyes and see that the better option to global people to tide over the present evils pestering the global political economy is to persuade its members for voluntary global political unity and to create global political sovereign bodies for sanctifying the global free contracting agreements over the internet shops and business houses and a legal enforcing machinery of such trans-border contracts by suppressing infringements and crimes. It should address that issue by inviting global debate over the costs and benefits to global population for such legal machinery and if necessary seek global impartial referendums to strengthen the UNO, to transform it into sovereign body as world government to preserve the planet earth from uncertain climatic changes due to human economic activity and for peace and good government of whole humanity which is also the silent cry of vast majority of global people.